Citation Nr: 1723031
Decision Date: 06/21/17 Archive Date: 06/29/17
DOCKET NO. 13-14 677 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to an increased rating for right wrist tenosynovitis, currently rated at 10 percent disabling.
2. Entitlement to an increased rating for left wrist tenosynovitis, currently rated at 10 percent disabling.
3. Entitlement to service connection for a right hand condition.
4. Entitlement to service connection for a left hand condition.
ATTORNEY FOR THE BOARD
S. R. Gitelman, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1982 until June 2010.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction was subsequently transferred to the RO in Columbia, South Carolina.
The Veteran was granted service connection for left and right wrist tenosynovitis, with a zero percent disability rating, effective July 1, 2010, in an October 2011 rating decision. In an April 2013 rating decision, that disability rating was increased to 10 percent for both wrists, effective July 1, 2010. As that was not a full grant, the issues remain on appeal.
The Veteran requested a hearing in his May 2013 VA Form 9, but he subsequently withdrew his hearing request in this matter in November 2014.
This appeal was processed using the Veterans Benefits Management System (VBMS). A review was also conducted of the Veteran's Legacy Content Manager Documents.
FINDINGS OF FACT
1. Resolving reasonable doubt in favor of the Veteran, a right hand disability was incurred in service.
2. Resolving reasonable doubt in favor of the Veteran, a left hand disability was incurred in service.
3. The Veteran's right wrist tenosynovitis is manifested by pain on movement, but not by limitation of range of motion. The Veteran has neither a current diagnosis of ankylosis, nor x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.
4. The Veteran's left wrist tenosynovitis is manifested by pain on movement, but not by limitation of range of motion. The Veteran has neither a current diagnosis of ankylosis, nor x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.
CONCLUSIONS OF LAW
1. The criteria for service connection for a right hand disorder have been met. 38 U.S.C.A. § § 1110, 1131, 5107 (West 2014); 38 C.F.R. § § 3.102, 3.303, 3.307, 3.309 (2016).
2. The criteria for service connection for a left hand disorder have been met. 38 U.S.C.A. § § 1110, 1131, 5107 (West 2014); 38 C.F.R. § § 3.102, 3.303, 3.307, 3.309 (2016).
3. The criteria for rating in excess of 10 percent for right wrist tenosynovitis have not been met. 38 U.S.C.A. § § 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5215 and 5024 (2016).
4. The criteria for rating in excess of 10 percent for left wrist tenosynovitis have not been met. 38 U.S.C.A. § § 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5215 and 5024 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
VA's duty to notify was satisfied by a letter dated June 2010, relating to all claims submitted by the Veteran prior to his separation from active duty under the VA Pre-Discharge Program. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Here, the Veteran's service treatment records and post-service VA and private treatment records have been associated with the claims file. Additionally, the Veteran has not identified any records that have not been requested or obtained.
The Veteran was afforded VA examinations in September 2010, February 2013 and September 2014. The Board finds that, when taken together, the examination reports are adequate because the examiners conducted clinical evaluations, interviewed the Veteran, and evaluated the Veteran's claimed conditions in sufficient detail to allow the Board to reach an informed determination. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).
The Veteran requested a hearing in his May 2013 VA Form 9, but he subsequently withdrew his hearing request in this matter in November 2014.
The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Service Connection
The Veteran is seeking entitlement to service connection for right and left hand disabilities he contends arose from an accident while in service and which were first treated at that time.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2014). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or "nexus", between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2016).
Moreover, where a veteran has served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and one of the diseases listed as "chronic" in 38 C.F.R. § 3.309, including arthritis, becomes manifest in service or to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). For these "chronic" diseases, service connection may also be based on a continuity of symptomatology. 38 C.F.R. § 3.303(b) (2016).
The Veteran's service treatment records first note a right hand issue in September 1993, with a handwritten note from the Peterson AFB primary care clinic making reference to a jam injury to the proximal interphalangeal (PIP) joint of the right ring finger. A radiologic consulation report from that same day notes "considerable soft tissue swelling at the proximinal interphalangeal articulation" of the right fourth finger. That report also records the presence of a small bone fragment, leading the examiner to suggest the possibility that the Veteran at one point had a small chip fracture.
An April 1997 examination record reflects the Veteran reporting right hand pain, occurring off and on for the prior three months. At this examination, the Veteran indicates the pain is from an earlier fall.
A February 2010 medical record offers a more comprehensive examination of the Veteran's reported bilateral hand pain. An unsigned radiological report reflects mild joint space narrowing and sclerosis of the left hand greater than the right at the first metacarpal phalangeal joint and of the right greater than the left at the first carpometacarpal joint. The examiner's impression is that the hands are mildly osteoarthritic. Elsewhere, a transcribed note, also recorded in February 2010, reports no gross abnormalities of the Veteran's hand upon examination. The hands are indicated to be nontender to palpation and having full abduction, adduction, internal rotation, extrernal rotation, flexion and extension. Strength is reported at 5 out of 5. There is mild pain with movement. The Veteran is found to have joint stiffness of the fingers, and it is noted that this is likely mild osteoarthritis.
A March 2010 treatment visit has the Veteran reporting six months of hand pain, with no tingling or numbness and morning stiffness lasting hours. There are no rheumatoid nodules, and after a review of x-rays, the examiner finds that the Veteran probably has Eaton Stage I degenerative arthritis of the thumbs. The Veteran is also tested as negative for Tinel's and Phalen's. He has negative arm elevation, his grip is 88 on the right and 78 on the left, with positive axial grind, and twist and shelf signs in both basilar joints where there is arthritic change. The examiner, noting the Veteran's parent's history of rheumatoid arthritis, indicates that the Veteran's symptoms make him think he may also have that condition.
A later March 2010 examination reports bibasilar shelf signs with some crepitus, and offers a diagnosis of "probable osteoarthritis but with symmetrical findings, morning stiffness, still think about [rheumatoid arthritis]."
A post-separation medical record from August of 2010 reflects a grip test of 25 for the right and 65 for the left. The Veteran is reported to have shelf sign bilaterally with crepitus, as well as positive axial grind and twist at the basilar joints. He also is reported to test positive for Tinel's and Phalen's and to have median nerve compression. He is diagnosed with basilar arthritis of the thumb, and the physician notes that it "looks like he has carpal tunnel." An addendum to this medical report indicates that lateral x-rays of both thumbs show positive shelf sign, some narrowing, and joint space narrowing. The left thumb x-ray shows some spurs and just moderate subluxation, and the physician notes that this does confirm arthritis at the basilar joints of the thumb.
A September 2010 VA examination reports the Veteran claiming arthritis of the hand and indicating that he had been told that he had carpal tunnel syndrome. The Veteran reported pain at 5 out of 10, with flare ups to 7 out of 10, with an onset of 2000. The Veteran indicates that his hand condition interferes with daily living in that his dexterity is diminished. The examiner notes normal range of motion and negative signs of Tinels or Phalen's for carpal tunnel syndrome. X-rays of the hands are negative. His overall diagnosis is that the examination does not support a finding for carpal tunnel syndrome of the wrists or any pathology for the hands, including arthritis.
In a February 2013 VA examination, the Veteran was diagnosed with "bilateral hand pain." Though the Veteran reported functional loss from flare-ups during cold weather, the examiner reported no functional loss from the fingers or thumbs of either hand. The examiner also reports no limitation of range of motion and no objective evidence of any pain on motion of the fingers or thumbs. Grip strength for both hands is reported at 5 out of 5. The Veteran has no ankylosis, and there are no abnormal findings from x-rays. The examiner concludes that the only chronic condition of the Veteran's hands is joint pain.
The most recent record appears to be a note in a February 2016 VA treatment report reflecting the Veteran's assertion that he has had arthritis in his hands and wrists "for years," and that he is satisfied taking Celebrex for the arthritic pain in his hands.
After closely reviewing the record, the Board finds that the evidence shows that the Veteran had a diagnosis of arthritis of the hands/thumbs during service. Indeed, medical records dated in February 2010 show that the Veteran had mild osteoarthritis in the hands based on a radiological report that showed mild joint space narrowing and sclerosis of the left hand greater than the right at the first metacarpal phalangeal joint and of the right greater than the left at the first carpometacarpal joint. A March 2010 medical report also indicated that the Veteran had Eaton Stage I degenerative arthritis of the thumbs after review of the x-rays. Further, a post-service medical record dated in August 2010, within 1 year of discharge from service, revealed that the Veteran had basilar arthritis of the thumb. The physician explained that lateral x-rays of both thumbs showed positive shelf sign, some narrowing, and joint space narrowing. The left thumb x-ray showed some spurs and just moderate subluxation, and the physician found that this confirmed arthritis at the basilar joints of the thumb. The Board acknowledges that the September 2010 and February 2013 VA examiners found that the Veteran had no pathology of the hands, including arthritis, and both examiners indicated that there were no abnormalities on the x-rays. However, as the VA examiners did not provide detailed explanations of their interpretations of the x-rays, the Board finds that the February 2010, March 2010, and August 2010 physicians' diagnoses of arthritis of the thumbs to be more probative in this matter. Therefore, the Board finds that service connection for right and left hand disabilities is warranted, as the probative evidence shows that arthritis of the right and left hands manifested itself in service and within 1 year after discharge from service. 38 C.F.R. §§ 3.307, 3.309.
Given the above and resolving reasonable doubt in favor of the Veteran, service connection for right and left hand conditions is granted.
Increased Rating
The Veteran was granted service connection for left and right wrist tenosynovitis, with a zero percent disability rating, in an October 2011 rating decision. In an April 2013 rating decision, that disability rating was increased to 10 percent for both wrists. The Veteran here seeks a further increase.
Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2014). Separate diagnostic codes identify the various disabilities. Id.; 38 C.F.R. § 4.27 (2016). It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § § 4.1, 4.2 (2016).
If there is a question as to which disability rating to apply to a Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016).
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, are expected in all instances. 38 C.F.R. § 4.21 (2016).
Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nonetheless, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings where indicated by the evidence of record. See, e.g., Hart v. Mansfield, 21 Vet. App. 505 (2007).
Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.410 (2016).
The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107 (a) (West 2014). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107 (b) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id.
As noted above, the Veteran's right and left wrists are currently rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71A, Diagnostic Code (DC) 5024 (2016), which pertains to tenosynovitis. The Veteran argues in his March 2012 notice of disagreement, as well as in his May 2013 VA Form 9, that his wrists cause him constant pain when working with his hands. In a September 2014 VA examination, the Veteran is noted as reporting to the examiner that his wrists are painful if he is doing something physical.
Under DC 5024, tenosynovitis of a joint is rated based on limitation of motion of the affected parts, in the same manner as degenerative arthritis. 38 C.F.R. § 4.71a (2016). Degenerative arthritis is rated under DC 5003, which provides that degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. Id. Painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59 (2016).
Limited motion of the wrist is rated under DC 5215. 38 C.F.R. § 4.71a (2016). Dorsiflexion less than 15 degrees warrants a 10 percent rating. Palmar flexion limited in line with the forearm warrants a 10 percent rating. In order to warrant a higher rating, the evidence must show ankylosis. 38 C.F.R. § 4.71a (2016).
In a September 2014 VA examination, both palmar flexion and wrist dorsiflexion, for both left and right wrists, showed maximum range of motion, 80 for palmar flexion and 70 for dorsiflexion. A September 2010 VA examination also shows palmar flexion and wrist dorsiflexion, for both wrists, at the maximum range of motion. In both instances, it is also noted that the ranges of motion appear to the examiner to be pain free.
The September 2014 VA examination reports that the Veteran does not have ankylosis of either wrist. Nowhere in the record does the evidence show that his range of motion is so limited so as to effectively qualify as ankylosis.
The Board has considered whether the Veteran had additional functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, or weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 92 (1991). However, although VA is required to apply 38 C.F.R. § § 4.40 and 4.45, pertaining to functional impairment, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston v. Brown, 10 Vet. App. 80, 84-84 (1997). Viewed in a light most favorable to the Veteran, the evidence shows that he has functional loss -- less movement than normal -- but the next higher rating requires ankylosis, which the evidence does not show. Therefore a higher rating is not available for the wrist under the Rating Schedule.
For these reasons, the Board cannot assign a higher disability rating to the Veteran for the tenosynovitis of his right and left wrists.
ORDER
Entitlement to an increased rating for right wrist tenosynovitis, currently rated at 10 percent disabling, is denied.
Entitlement to an increased rating for left wrist tenosynovitis, currently rated at 10 percent disabling, is denied.
Entitlement to service connection for a right hand condition is granted.
Entitlement to service connection for a left hand condition is granted.
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JENNIFER HWA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs